Historic Preservation Guild of Bay View v. Burnley, 88-2080
| Decision Date | 15 December 1989 |
| Docket Number | No. 88-2080,88-2080 |
| Citation | 896 F.2d 985 |
| Parties | 20 Envtl. L. Rep. 20,307 The HISTORIC PRESERVATION GUILD OF BAY VIEW; Nancy Rajala; Stephen W. Guittard, Plaintiffs-Appellants, v. James H. BURNLEY; Robert Farris; James P. Pitz, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gary R. Rentrop, Susan E. Morrison (argued), Gary R. Rentrop, P.C., Bloomfield Hills, Mich., for plaintiffs-appellants.
Janice Kittel Mann, Asst. U.S. Atty. (argued), Grand Rapids, Mich., R. Phillip Brown, Lansing, Mich., for defendants-appellees.
Before: KEITH and WELLFORD, Circuit Judges, and GILMORE *, District Judge.
This case involves a highway widening project in the historic village of Bay View, Michigan. The plaintiffs, who challenge the widening of the highway, contend that the highway project has been unlawfully segmented in order to avoid the federal regulations governing highway construction in historic areas. The plaintiffs have sought to enjoin the construction and, ultimately, to have the highway project remanded to the federal government for further environmental study. We must decide whether the highway construction is indeed a federal project and thus subject to federal environmental construction guidelines. The district court granted summary judgment for the defendants on October 27, 1988, on the ground that the project at issue was not federal in character.
The State of Michigan proposed widening of U.S. Highway 31 as it proceeds through Bay View, Michigan, from two lanes to three lanes. The plaintiffs, the Historic Preservation Guild of Bay View (the Guild), argued against the project on the ground that the addition of a third lane, to be used for left-hand turns, would make it much more difficult to cross the street due to heavy traffic, during the summer tourist season particularly, and that the addition of the third lane would separate the sections of Bay View on either side of the road, destroying the continuity and character of the historic community. The principal defendants are James Burnley, Secretary of the United States Department of Transportation (at the time of the suit) (DOT), and James P. Pitz, Director of the Michigan Department of Transportation (MDOT). Defendants assert that the improvement would not substantially widen the cross-section of the highway from curb-to-curb. It is undisputed, however, that the project would move the road closer to certain historic cottages in the National Historic Landmark District.
Bay View was designated in 1988 as a National Historic Landmark District by the United States Department of the Interior. It is one of only sixteen historic landmarks in the State of Michigan. Much of Bay View's appeal stems from its status as "one of the last remaining examples of two uniquely American community forms, the Methodist Camp Meeting and the Independent Chautauqua." There is testimony in the record that Bay View is one of the finest extant examples of this type of community, primarily because its original design is so well preserved. The community contains 440 cottages, 100 of which were built in the late 1870s, and the remainder of which were built between 1880 and 1900.
The strength of the plaintiffs' argument depends primarily upon the question of whether the highway project can be characterized as federally funded. The history of federal funding for this project is somewhat confusing, but the district court made extensive and detailed findings on this question. Essentially, the plaintiffs contend that federal funding was used to widen segments of U.S. Highway 31 on either side of Bay View, and that the segment in question cannot be separated or segmented from the parts that did have federal funding. The defendants admit only that federal funds were employed to widen a segment of the road from Bear Creek in Petoskey, Michigan, to the western boundary of Bay View. The segment of road at issue in this case runs from the intersection of U.S. Highway 31 and Michigan Highway 119 (M-119) on the east side of Bay View to Petoskey on the west.
For planning and construction purposes, the State of Michigan has separated this 2.8 mile stretch of U.S. Highway 31 into six segments. Segment One runs from the intersection of U.S. Highway 31 and U.S. Highway 131 to Beaubiean Avenue in Petoskey. This segment has not been widened. Segment Two, a two-lane portion of U.S. Highway 31 running through the town of Petoskey, was constructed using federal funds in 1962. This segment ends one-half mile from Bay View's western border. Segment Three is the portion of U.S. Highway 31 running between Stuart and Beaubiean Avenues in Petoskey. This segment was widened in 1979, using only state funds. Segment Four runs through Bay View to Division Road, the eastern border of Bay View. Segments Five and Six run from Division Road to M-119 on the east side of Bay View. Segments Five and Six were widened to four and five lanes, respectively, in 1985 using federal funds. 1
The plaintiffs sought initially and still seek injunctive and declaratory relief for alleged violations of a number of federal statutes and administrative regulations. They filed suit for injunctive and declaratory relief on July 18, 1988. They ultimately want the project remanded to the United States Department of Transportation (DOT) for further study and review consistent with applicable statutes and regulations, and to place the project back into its status before certain construction and widening was permitted. The plaintiffs allege violations of the following federal statutes and regulations: One, section 4(f) of the Transportation Act, 49 U.S.C.App. Sec. 303 and 23 U.S.C. Sec. 138, which provides that the DOT will not approve any project requiring the use of an historic site unless, "(i) there is no prudent and feasible alternative to the use of such land, and (ii) such program includes all possible planning to minimize harm to such historic site resulting from such use." Plaintiffs argue that an acceptable alternative is to maintain and improve the existing two-lane road. Two, Section 106 of the National Historic Preservation Act, 16 U.S.C. Sec. 470f, provides that the head of any federal agency "having direct or indirect jurisdiction over a proposed federal or federally-assisted undertaking," shall, prior to approving the use of any federal funds, "take into account the effect of the undertaking on any site that is included in the National Register" and "shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment with regard to such undertaking." Three, Section 110(f) of the National Historic Preservation Act, 16 U.S.C. Sec. 470h-2(f), provides that, prior to approving any federal undertaking affecting a national historic landmark, "the head of the responsible federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark and shall afford the Advisory Council a reasonable opportunity to comment on the undertaking." Plaintiffs allege that the defendants failed to afford the Advisory Council a reasonable opportunity to comment. Four, Section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4332(2)(C) and (E), requires the filing of an Environmental Impact Statement consistent with the requirements of federal law. Five, 23 U.S.C. Sec. 128 and 23 C.F.R. Sec. 790 require that a certification be received from MDOT indicating that public hearings were held to consider the social, economic, and environmental impacts of such a project. Six, 23 C.F.R. Sec. 772 requires the DOT to determine and analyze expected traffic and construction noise resulting from such construction projects.
The statutes and regulations allegedly violated by the defendants obviously place restrictions upon federal projects for road construction. If Michigan's plan to widen the road through Bay View is a federal project, then the state and federal agencies must comply with the statutory requirements discussed above. If, however, the project is a state project, then the requirements of federal law are not required to be met. It seems clear from the record that "federal requirements have not been met with regard to this project," as found by the district court.
Following the decision by the district court denying plaintiffs' motion for a temporary restraining order and preliminary injunctive relief and granting defendants' motions for summary judgment, the district court also denied a stay or injunction pending appeal to this court. On November 10, 1988, a panel of this court denied plaintiffs' request for an injunction pending appeal, but granted plaintiffs' request for an expedited hearing. Construction on the widening project then proceeded. On May 1, 1989, however, a panel of this court granted plaintiffs' subsequent motion to stay or enjoin further construction of the disputed portion of the highway pending a hearing on the merits of the appeal. After further consideration of briefs and evidentiary submissions by the parties relative to the status of the project and the effect of our May 1, 1989 stay, we entered another order on May 12, 1989, set out hereafter in pertinent part:
Defendants have ceased construction in progress on said highway, although plaintiffs have apparently failed to post the $25,000 bond required as a condition for such stay. Defendants have submitted an emergency motion to dissolve the stay, or for immediate oral argument and/or for requirement of an additional substantial bond to provide for damages claimed as a consequence of the stay. Defendants' motion has been accompanied by exhibits, affidavits and a showing indicating the basis for the immediate relief sought.
Plaintiffs have responded to the motion in opposition to the lifting of the stay. They have also requested that the bond requirement be reduced, and have...
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